Citation NR: 9726099
Decision Date: 07/29/97 Archive Date: 08/06/97
DOCKET NO. 96-10 535 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
pulmonary disability.
2. Entitlement to an increased evaluation for pleural cavity
injury, due to shell fragment wounds to the chest, currently
evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1943 to
February 1946.
This appeal arises from a June 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho which denied increased evaluations for pleural
cavity injury due to shell fragment wounds, residuals of
shell fragment wounds to the left arm, and denied the
veteran’s request to reopen his claims for service connection
for pulmonary disability and the residuals of pericarditis.
In July 1995, the veteran filed a notice of disagreement with
that decision. He stated he disagreed with the denial of an
increased evaluation for his service-connected lung
condition, and reiterated that a VA lung specialist said
nerve damage had resulted from either his gunshot wound or
surgery, which caused his lung to malfunction. The Board
interprets the veterans statements as indicating disagreement
with the denial of an increased evaluation for his pleural
cavity injury and the RO’s decision not to reopen his claim
for service connection for pulmonary disability.
The medical evidence in the claims folder indicates that the
veteran may have paralysis of the diaphragm as a result of
surgery performed at a VA facility. This raises an inferred
claim for benefits under 38 U.S.C.A. § 1151 (West 1991 &
Supp. 1996). Akles v. Derwinski, 1 Vet.App. 118 (1991).
That issue has not been developed or certified for appellate
review and is referred to the RO for appropriate action.
The issue of an increased evaluation for pleural cavity
injury due to shell fragment wounds is covered in the remand
portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the evidence submitted since the
Board of Veterans’ Appeals (Board) denied his claim for
service connection for a pulmonary disability, is new and
material. He asserts that the statements of the pulmonary
specialist as to the causation of his pulmonary disability
are new and material. He avers that his claim should be
reopened.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has submitted new
and material evidence to reopen his claim for service
connection for pulmonary disability.
FINDINGS OF FACT
1. In an August 1979 decision, the Board denied service
connection for a severe obstructive restrictive pulmonary
function defect as secondary to service-connected pleural
cavity injuries. That decision is the last final
disallowance of the claim for service connection for
pulmonary disability.
2. The VA and private medical records; including a medical
opinion that the veteran’s service connected pleural cavity
injuries caused inflammation, which lead to pericarditis, and
damage to the phrenic nerve; are new and material and present
a reasonable possibility that the outcome of the RO decision
could be changed.
CONCLUSION OF LAW
Evidence received since the August 1979 decision of the
Board, which denied service connection for pulmonary
disability, is new and material. The veteran’s claim for
service connection for pulmonary disability is reopened.
38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991 & Supp. 1996);
38 C.F.R. § 3.156 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
To establish service connection for a claimed disability, the
facts as shown by evidence must demonstrate that a particular
disease or injury resulting in current disability was
incurred during active service or, if preexisting active
service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131
(West 1991 & Supp. 1996). Service connection may be granted
for disability which is proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310
(a)(1996).
Once entitlement to service connection for a given disorder
has been denied by a decision of the Board of Veterans'
Appeals, that determination is final. In order to later
establish service connection for the disorder in question, it
is required that new and material evidence be presented which
provides a basis warranting reopening the case and a grant of
the benefit under consideration. 38 U.S.C.A. §§ 5108,
7104(b) (West 1991 & Supp. 1996); 38 C.F.R. § 3.156(a)
(1996).
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1996).
"New and material evidence" means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1996).
In August 1979, the Board denied the veteran’s claim of
entitlement to service connection for severe obstructive
restrictive pulmonary function defect as secondary to
service-connected pleural cavity injuries. The evidence in
the claims folder at the time of that decision included the
following. Service medical records from April 1945, which
revealed that the veteran had sustained severe shell fragment
wounds to the chest. The wounds caused the veteran to
develop a severe left hemothorax. Also of record were post
service VA medical records, dated from December 1947 to
October 1977. VA records from 1965 reveal that the veteran
had a pericardiectomy to relieve chronic constrictive
pericarditis. Private medical records from July 1970 to June
1977 were considered. Lay statements from the veteran’s
friends and co-workers were also in the claims folder. The
veteran’s private physician submitted a statement, which said
that the veteran’s pulmonary problems apparently stemmed from
his service-connected injury. A VA examiner stated that the
veteran’s shortness of breath and pulmonary problems were
related, at least in part, to his service connected bullet
wound. Based on that evidence,the Board denied the veteran’s
claim.
In determining whether new and material evidence has been
presented to warrant reopening the claim under 38 U.S.C.A.
§ 5108, consideration must be given to all of the evidence
submitted since the last final disallowance of the claim.
See Evans v. Brown, 9 Vet.App. 273 (1996).
The last final disallowance of the claim was the Board
decision in August 1979. In December 1994, the veteran filed
a claim for an increase in his service-connected disability
with reference to a lung condition. The RO construed the
claim as a request to reopen the claim for entitlement to
service connection for chronic obstructive lung disease. In
June 1995, the RO denied the request to reopen the claim.
The veteran filed an appeal to the Board.
The evidence submitted since the last final disallowance of
the claim includes private medical records from 1978 through
1995. The private medical records include records of
treatment for chronic obstructive lung disease, with
notations of dyspnea. A private specialist noted that the
veteran’s shrapnel injuries had resulted in an inflammatory
process in the left chest. He opined that it may have led to
his constrictive pericarditis and then led to paralysis of
the diaphragm. He stated that the veteran’s pulmonary
symptoms were due to paralysis of the diaphragm. Also
submitted were recent VA records. The VA records included
pulmonary function tests. Those tests revealed impaired
pulmonary functioning.
The medical records noted above were not in the claims folder
at the time of the Board denial. They are not duplicates of
any previously submitted records. They are not merely
cumulative. They are new and relate to the issue of service
connection for pulmonary disability.
In considering whether a claim may be reopened based on new
and material evidence, a two step analysis must be performed.
Manio v. Derwinski, 1 Vet.App. 140 (1991). First, it must be
determined whether the evidence presented or secured since
the prior final disallowance of the claim is "new and
material". Second, if the evidence is new and material, the
new evidence must be reviewed "in the context of" the old
evidence to determine whether the prior disposition of the
claim should be altered. Bernard v. Brown, 4 Vet.App. 384
(1993).
In Colvin v. Derwinski, 1 Vet.App. 171 (1991), the United
States Court of Veterans Appeals (Court) defined the a
statutory terms "new" and "material". Evidence is "new" if
it is not "merely cumulative of other evidence on the
record." "Material" evidence is relevant and probative of
the issue at hand and there is "a reasonable possibility that
the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome."
Presently of record are medical records which demonstrate
that the veteran has pulmonary disability. Two medical
examiners previously attributed the veteran’s pulmonary
symptoms to his service connected shell fragment wound. The
RO denied the veteran’s claim on the basis that they were
speculative. Since that denial an opinion from a third
physician has been submitted. He stated that the veteran’s
service-connected disability may have caused him to develop
pericarditis, which led to paralysis of the diaphragm and his
current pulmonary disability.
The Court has held that where a medical opinion of record is
equivocal at best, the threshold requirements for
establishing a well grounded claim have not been met. Obert
v. Brown, 5 Vet.App. 30 (1993). In that case the Court found
that the combination of two speculative opinions was
sufficient to present a minimally well-grounded claim. In a
recent case the Court extended this view to a determination
of whether or not a claim for service connection should be
reopened. The Court held that the use of cautious language
did not always express inconclusiveness as to etiology. The
Court stated that the etiological opinion should be viewed in
its full context and not characterized solely by the medical
professional’s choice of words. Lee v. Brown, 96-344 (U. S.
Vet.App. June 27, 1997).
In this instance, the opinion indicates a plausible series of
events, which in combination with the evidence previously of
record, raises a reasonable possibility that the outcome of
the prior Board decision might change.
The Board finds that the veteran has presented new and
material evidence to reopen his claim for service connection
for pulmonary disability.
ORDER
New and material evidence having been submitted, the request
to reopen the claim for service connection for pulmonary
disability, is granted.
REMAND
In Bernard v. Brown, 4 Vet.App. 384 (1993), the Court held
that before the Board addresses in a decision a question that
has not been addressed by the RO, it must consider whether
the claimant has been given adequate notice of the need to
submit evidence or argument, an opportunity to submit such
evidence or argument, an opportunity to address the question
at a hearing, and whether the claimant has been prejudiced by
being denied those opportunities. For that reason the
veteran’s claim for service connection for pulmonary
disability must be remanded to the RO to be readjudicated on
a de novo basis.
The veteran is also seeking an increased evaluation for
pleural cavity injury due to shell fragment wounds to the
chest. The regulations provide that ratings of coexisting
respiratory conditions will not be combined with each other.
38 C.F.R. § 4.96 (1996). If the veteran is granted service
connection for pulmonary disability, a separate evaluation
would not be assigned. A single rating would be assigned
under the Diagnostic Code which reflected the predominant
disability with elevation to the next higher evaluation where
the severity of the overall disability warranted such
elevation. If the veteran is granted service connection for
pulmonary disability, the evaluation of his service-connected
pleural cavity injury due to shell fragment wounds to the
chest might vary. For that reason the claims are
inextricably intertwined. Kellar v. Brown, 6 Vet.App. 157
(1994)
In addition during the pendency of this appeal, the VA issued
new regulations for evaluating disability due to respiratory
disorders. 61 Fed.Reg. 46720-46741 (September 5, 1996). The
Court in Karnas v. Derwinski, 1 Vet.App. 308 (1991) held that
where laws or regulations change, after a claim has been
filed or reopened, and before administrative or judicial
process has been concluded, the version most favorable to the
veteran applies, unless Congress provided otherwise or
permitted the Secretary of Veterans Affairs to do otherwise
and the Secretary did so. The RO should readjudicate the
veteran’s claim for an increased evaluation for pleural
cavity injury due to shell fragment wounds to the chest and
consider both the old and new diagnostic codes.
The VA has a duty to assist the veteran in the development of
all facts pertinent to his claim. 38 U.S.C.A. § 5107 (a)
(West 1991 & Supp. 1996); 38 C.F.R. § 3.103(a) (1996). The
Court has held that the duty to assist the veteran in
obtaining available facts and evidence to support his claim
includes obtaining pertinent evidence that applies to all
relevant facts. Littke v. Derwinski, 1 Vet.App. 90 (1990).
This duty also includes providing additional examinations by
specialists when recommended or indicated. Hyder v.
Derwinski, 1 Vet.App. 221 (1991). Accordingly, this case is
REMANDED to the RO for the following actions:
1. The RO should contact the veteran and
request that he identify the names,
addresses, and approximate date of
treatment for all VA and non-VA health
care providers who have treated him since
service separation for his pleural cavity
injury due to shell fragment wounds or
pulmonary disability. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran, in response to this request,
which have not been previously secured.
2. The RO should schedule the veteran
for a comprehensive VA examination by a
board certified cardiologist and
pulmonary specialist, if available, to
determine the severity of the veteran’s
residuals of shell fragment wounds to the
chest and the etiology of any current
pulmonary disability. The claims file
and a copy of this remand must be made
available to and reviewed by the
examiners prior to the requested study.
All indicated tests must be conducted.
The examiners are requested to diagnose
any current pulmonary disability.
The examiners are requested to comment on
the presence or absence of the following
symptoms: Tachycardia, dyspnea or
cyanosis on slight exertion; adhesions of
the diaphragm or pericardium with marked
restriction of excursion or poor response
to exercise. Pulmonary function tests
should be performed and the results
placed in the claims folder. Any
evidence of right heart failure, right
ventricular hypertrophy or pulmonary
hypertension should be noted and
confirmed by Echo or cardiac
catheterization. If the veteran has
episodes of acute respiratory failure or
requires outpatient oxygen it should be
noted.
The examiners are also requested to
comment upon whether or not there are any
other medical or other problems that have
an impact on the functional capacity
affected by the service connected
disability, and if such overlap exists,
the degree to which the nonservice
connected problem creates functional
impairment that may be dissociated from
the impairment caused by the service
connected disability. If the functional
impairment created by the nonservice
connected problem can not be dissociated,
the examiners should so indicate.
After reviewing the evidence in the
claims folder and examining the veteran,
the examiners are requested to consult
with each other and answer the following
question. Is it at least as likely as
not that the veteran’s current pulmonary
disability is causally related to his
service-connected shell fragment wound to
the chest? The examiners should provide a
rationale for any opinion expressed.
3. Following the above, the RO should
review the examination reports and assure
that all requested information has been
provided. If not, the examinations
should be returned as inadequate for
rating purposes. 38 C.F.R. § 4.2 (1996).
4. Then the RO should readjudicate the
issues on appeal.
Following completion of the above actions, the case should be
reviewed by the RO. If the benefits sought remain denied, or
if a notice of disagreement is received regarding any other
issue, the veteran and his representative should be provided
with an appropriate supplemental statement of the case and
given the opportunity to respond. The case should then be
returned to the Board for further appellate review.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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